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How to cancel a transfer The procedure for dismissal in connection with the refusal to transfer to another locality with the employer

Technological working conditions have changed in the subdivision - equipment has been automated. The employees who were accepted to monitor the instruments are no longer needed. We offer them a transfer to vacant positions in other departments and to other positions. What to do if an employee refuses to transfer?

Answer

Answer to the question:

The course of action for employees who refuse to transfer depends on whether the employees are expected to change only the division in which they work, or the position held by the employees will also change.

By general rules, a permanent or temporary change in the structural unit in which the employee works (if structural subdivision was specified in the employment contract), while continuing to work for the same employer, is a transfer of the employee, which must be executed accordingly ( Art. 72.1 of the Labor Code of the Russian Federation).

You will have no questions about employee transfer: most frequently asked questions after reading the article at the link.

In addition, it should be noted that current legislation as mandatory condition employment contract the place of work is indicated, and in the case when an employee is hired to work in a branch, representative office or other separate structural subdivision of the organization located in another area - place of work indicating a separate structural unit and its location(par. 2 hours 2 tbsp. 57 of the Labor Code of the Russian Federation). At the same time, another locality is understood as an area outside the administrative-territorial boundaries of the corresponding settlement ( p. 16 Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

Thus, if employees are registered in a branch that is located outside the administrative-territorial boundaries of the settlement in which the organization itself is located, then this fact must be recorded in the employment contracts of employees. Therefore, if in fact these workers will change the place of work, then such a change can be formalized only through a change in the terms of the employment contract. According to the general rules, the employer has the right to change the terms of the employment contract for reasons of an organizational or technological nature, unilaterally. In this case, if any employee refuses the corresponding change, then he can be dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation ( see attachment to answer below).

However, if the branch where employees work and where they should be transferred is located in the same area as the organization itself, then in fact the employer is required to indicate only the place of work, which is understood as the name of the organization and its legal address. In this case, it is not necessary to indicate the name of the branch and its address. In this case, if when changing the address of the branch where employees work, none of the terms of the employment contract is changed and the area in which they will work does not change, then for them there will actually be a movement ( Part 3 Art. 72.1 of the Labor Code of the Russian Federation). The relocation of an employee does not require his consent and can be issued by the employer unilaterally ( see appendix to answer). When moving, an entry in the employee's work book is not made.

If, in your situation, it is also supposed to change the position of the employee, that is, his labor function, then it is supposed to change the obligatory condition of the employment contract, which cannot be changed by the employer unilaterally, including through the procedure for changing the terms of the employment contract for organizational reasons. or technological. The position of an employee can be changed only by agreement of the parties. This directly follows the general meaning of articles 57, 72, 74 of the Labor Code of the Russian Federation.

In this case, if one of the employees refuses to be transferred to another position, then the employer will have to draw up a procedure for reducing the relevant employees in the general manner ().

Details in the materials of the System Personnel:

Situation: How to make changes to the employment contract if they are caused by a change in the organizational or technological working conditions in the organization.

Changes to an employment contract for reasons related to a change in organizational or technological working conditions include, for example:

changes in engineering and production technology, for example, the introduction of new equipment, which led to a decrease in the workload of an employee ();
structural reorganization of production (for example, the exclusion of any stage of the production process);

other changes in organizational or technological working conditions that led to a decrease in the employee's workload.

If supplementary agreement will not be issued in a timely manner, but the employee will continue to work in the new conditions after notification of the changes, this means that the employee has actually agreed to such changes. The legality of this approach is confirmed by the courts (see, for example,).

If the employee does not agree to work in the new conditions, then the organization is obliged to offer him another job, including a lower and lower paid one, if the organization has suitable vacancies. You only need to offer the employee vacancies that the employer has in the area. It is necessary to offer vacancies in other localities only if it is provided for by the collective (labor) agreement, other agreements. This procedure is enshrined in Article 74 of the Labor Code of the Russian Federation.

If the employee refuses to work in the new conditions or there are no suitable vacancies in the organization, then the employment contract can be terminated:

on the basis of part 1 of article 81 of the Labor Code of the Russian Federation c - if we are talking about changing the working regime, namely the introduction partial regime ();
in connection with the refusal to continue work in the new conditions on the basis of part 1 of article 77 of the Labor Code of the Russian Federation, also with - in all other cases ().

An employer can dismiss an employee only after two months from the date of notification of a change in the terms of the employment contract. Opportunity early dismissal not provided for by law. A similar position is reflected in and confirmed judicial practice(see, for example,). The only option is to agree with the employee and issue the dismissal earlier, but on a different basis, for example, by paying an attractive amount of compensation.

When an employee is dismissed due to refusal to work under new conditions, the employer, in the event of a dispute with the employee, must have evidence that confirms that the change in the terms of the employment contract was the result of changes in organizational or technological working conditions. This is stated in the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. If the employer cannot provide such evidence and link one with the other, then changing the terms of the employment contract, and hence the dismissal of employees who refused to continue working in new conditions may be illegal. This is also indicated by the courts, see, for example, Actual personnel changes

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These conditions are: place of work; labor function; the amount of wages; working hours; benefits and other circumstances provided for by law, both directly stipulated at the conclusion of an employment contract, and derivatives. The transfer implies the performance of other work compared to that stipulated in the employment contract. The translation changes the content of the contract and therefore, in accordance with the Labor Code Russian Federation allowed only with written consent employee. The Labor Code does not contain an exhaustive list of essential terms of the contract. They are determined on a case-by-case basis. If material conditions change without specifying a time frame, then such changes will be regarded as permanent.

This means that the employee moves to another structural unit, but at the same time his position, official duties, salary ( tariff rate) and other essential conditions of the employment contract do not change. The problem arises due to the fact that in Article 57 of the Labor Code of the Russian Federation “Content of the employment contract”, among the essential conditions of the employment contract, the place of work is in the first place, and in the case when the employee is hired to work in branch, representative office or other separate structural unit of the organization located in another location, indicating the structural unit and its location. A structural subdivision is an essential condition of an employment contract.

When is it allowed to transfer to another job without the consent of the employee

Transfer is possible for up to 1 month and only with the same employer If there is a need Suspend production for a while As mentioned above, the transfer of an employee to another job without his consent is possible only in cases provided for by the Legislation. If an employee refuses to transfer or does not go to work, then he can be held accountable for disciplinary action.

The transfer does not require the consent of the employee in cases where he remains at the same enterprise. That is, the terms of the contract do not change, the salary and wages remain the same.

Can an employee be transferred to another position without his consent - the answer must be sought, referring to the norms of the Legislation. Basic Process Diagram Transferring an employee to another position is allowed only when they write a written application.

Can they be transferred to another place of work without the consent of the employee?

If the proposed job does not suit the employee or the employer does not have such work, the employment contract is terminated in accordance with clause 7 of Article 77 of the Labor Code of the Russian Federation. Termination of the employment contract on this basis is possible only in the event of a real significant change in working conditions in the organization, which requires the employer to relation to such situations. For example: The secretary of Parus LLC was dismissed due to her refusal to perform the functions of a personnel inspector.

She went to court and was reinstated in her previous job. When comparing the old and new instructions the court found that the secretary was not charged with additional duties.

Employee transfer

Attention

The application can be considered as the consent of the employee to the transfer (Article 72 of the Labor Code of the Russian Federation). Many employees personnel services consider that the signature of the employee on the transfer order “I am familiar with the order ...” is his consent to the transfer. It is not right. The consent of the employee to the transfer must be obtained before, and not after, the issuance of the order.

In addition, familiarization with the document does not mean acceptance of its content. If necessary, the employee may express his disagreement or dissenting opinion below his signature. Transfer to another permanent job may occur at the initiative of the employee or at the suggestion of the employer.

Is it possible to transfer to another job without the consent of the employee

Two months have passed and now the company is closing, but the salary has not been paid ... Dismissal by agreement of the parties I wrote a letter of resignation under article 77, paragraph
1 of the Labor Code of the Russian Federation (by agreement of the parties), and my employer does not want to sign it. What should I do? How to refuse a transfer to another job? Last year alone, I was transferred four times to a job that was different in nature, motivating that, they say, this was dictated by an urgent production need ...
Can an accountant be deducted from an accountant's salary for a mistake? I am accountant. There was an incident with the calculation wages employee.
By mistake, two amounts of vacation pay were paid. The employee immediately refused to return the entire amount ... How profitable is it to quit? I am a manager, I have been working in the company for two months, the trial period has passed.

How to refuse a transfer to another job?

Started celebrating during business hours. Later there was a fight with people I didn't know... Should they have introduced me to the order? At work, the boss issued an order that the working day on Friday would be until 17:00.

Info

The order was issued at 4 p.m. The employees did not know about the issuance of this order, they did not sign anywhere ... probationary period- Is there a salary? I worked half a month on probation in a large firm.

Was forced to resign own will. Will I be paid for the time I work? Dismissal at work without registration, material liability My girlfriend worked for individual entrepreneur! Of course, not officially. The only paper she signed was her job description...

Is it possible to refuse a transfer to another place of work and achieve a layoff?

If they are limited to the period specified in the order, they will be classified as a temporary transfer. Promotion and demotion is also a transfer that requires the consent of the employee. Relocation or transfer? Part 3 of Article 72 of the Labor Code of the Russian Federation states that “it is not a transfer to another permanent job and does not require the consent of the employee to transfer him in the same organization to another workplace, to another structural subdivision of this organization, assignment of work on another mechanism or unit, if this does not entail a change in the labor function and a change in the essential conditions of the employment contract.
Unfortunately, in practice the above order is often violated. As noted in the literature, when conducting inspections of compliance with labor legislation, state labor inspectors often reveal such violations as failure to receive a written explanation from the employee about a disciplinary offense, violation of the deadline for applying disciplinary action(dismissal), failure to announce to the employee against signature an order to impose a disciplinary sanction, including dismissal, within three working days from the date of issuance of the order, etc. . It should be noted that these guarantees represent a certain system, which implies their application in interconnection and interdependence and excludes taking into account only one guarantee when dismissing an employee while ignoring other guarantees applicable in this case.

Refuse to transfer to another place of work without the consent of the employee

Thus, it is possible to include in employment contracts additional grounds for termination of the employment contract in cases where the employer - individual(Article 307 of the Labor Code of the Russian Federation) or religious organization(Article 347 of the Labor Code of the Russian Federation), or an employee - the head of the organization (Article 278 of the Labor Code of the Russian Federation) or a homeworker (Article 312 of the Labor Code of the Russian Federation). But these exceptions are due to the peculiarity of the method labor law- a combination of state and contractual regulation of labor and directly related relations. And the presence of only a few such exceptions only once again confirms the conclusion about the predominance of state regulation in the field of termination of the employment contract. As for federal laws that establish additional grounds for dismissal compared to the Labor Code of the Russian Federation, an example is the federal law dated August 22, 1995

Ryazantseva Anna Sergeevna(11/14/2014 at 4:40:34 pm)

Good afternoon! In accordance with Article 72.1 of the Russian Federation (Labor Code of the Russian Federation), transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in), while continuing to work at the same employer, as well as transfer to work in another locality together with the employer.

At the written request of the employee or with his written consent can be done transfer of an employee to a permanent job with another employer. At the same time, the employment contract at the previous place of work is terminated (paragraph 5 of the first part of Article 77 of the Labor Code of the Russian Federation).

Thus, the employer is not entitled to transfer you without your written consent. However, in accordance with Article 74 of the Labor Code of the Russian Federation, in the case when, for reasons associated with changes in organizational or technological working conditions(changes in engineering and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changes in the labor function of the employee.

The employer is obliged to notify the employee in writing not later than two months.

If the employee does not agree to work in the new conditions, then the employer is obliged in writing to offer him another job available to the employer(how vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other areas, if it is provided for by agreements, an employment contract.

In the absence of the specified work or the employee's refusal from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation - the employee's refusal to continue working due to a change in the terms of the employment contract determined by the parties.

Thus, you are reliably protected in this situation by law. Act knowing your rights and do not succumb to possible provocations of the employer.

Good luck to you!

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This is your case.
Article 180
When carrying out measures to reduce the number or staff of employees of the organization, the employer is obliged to offer the employee another available job (vacant position) in accordance with part three of Article 81 of this Code.
About the upcoming dismissal in connection with the liquidation of the organization, the reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against signature at least two months before the dismissal.
The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining until the expiration of the notice of dismissal.

This is what scares you.
Article 74
In the event that, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changes in the work function of the employee.
The employer is obliged to notify the employee in writing of the forthcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.
If the employee does not agree to work under the new conditions, the employer is obliged to offer him in writing another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health status. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

These are the material consequences of both options. Compare:
Article 178. Severance pay
Upon termination of the employment contract in connection with the liquidation of the organization (clause 1 of part one of Article 81 of this Code) or the reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of the average monthly salary, as well as the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after dismissal and was not employed by him.
Severance pay in the amount of two weeks of average earnings is paid to the employee upon termination of the employment contract due to:
refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (paragraph 7 of the first part of Article 77 of this Code).

There are bad records of dismissal: for drunkenness, absenteeism, repeated failure to fulfill work duties, due to an unsatisfactory test result, etc.
There are no good exit records. Which of the two evils is the lesser - depends not on the advice on the forum, but on the specific practice of "parting" with an unnecessary employee of each individual employer.